Decided: February 1, 2016
In a case about torture during Somalia’s military dictatorship, the Fourth Circuit held that the federal courts did not have jurisdiction over the Alien Tort Statute (ATS) claims in the case. The Fourth Circuit also held that the defendant was not immune from suit for the Torture Victim Protection Act (TVPA) claims based on his official status. On this basis, the Fourth Circuit affirmed the District Court’s holding dismissing the ATS claims, and allowing the TVPA claims to proceed.
In December, 1987, Warfaa was kidnapped from his home in Somalia by Somali National Army (SNA) soldiers, and detained on suspicion of supporting an opposition group. Over the next three months, at the direction of Ali, who was then a colonel in the SNA, Warfaa was beaten, interrogated, tortured, shot, and left for dead. In March, 1988, Warfaa bribed his guards to release him. He continues to reside in Somalia. In December, 1990, Ali emigrated to Canada, but was deported for human rights abuses, and came to the United States. The United States began deportation proceedings, but Ali left voluntarily in 1994. In 1996, Ali returned to the United States on a spouse visa, and continues to live here.
In 2004, Warfaa and another plaintiff filed suit against Ali in the Eastern District of Virginia, chose to dismiss the complaint, and refiled again two years later. For much of the next eight years, the case was stayed. Twice the stay was to allow the U.S. Department of State to comment on the case’s impact on foreign policy. The case was also stayed to await the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co.. In April, 2014, the Court lifted the stay, and Warfaa filed an amended complaint alleging six counts under the ATS, of which two also qualified as TVPA claims. Ali moved to dismiss the claims. The District Court dismissed the ATS claims, finding under Kiobel that the claims did not relate closely enough to the United States for the court to have jurisdiction. The Court allowed the TVPA claims to proceed, finding that Ali could not claim immunity for official acts when those acts went against the norms of jus cogens. Both Ali and Warfaa appealed.
The Fourth Circuit first found that the court did not have jurisdiction over the ATS claims. The Court noted that there is a presumption against ATS jurisdiction over acts occurring abroad unless, under Kiobel, those acts are closely enough tied to the United States to overcome the presumption. Here, the Court noted, the alleged incidents took place abroad, and did not involve U.S. citizens or the U.S. government. Ali’s residency in the United States did not create enough of a relationship with the U.S. for there to be ATS jurisdiction.
The Fourth Circuit then found that Ali was not immune under the TVPA for his official acts. Ali had urged the Court to overrule its prior holding in Yousuf v. Samantar, finding that there is no immunity for official acts which violate jus cogens norms. The Fourth Circuit, however, noted that it was bound by the decision of another panel of the Court until the issue was considered en banc. On this basis, the Fourth Circuit affirmed the District Court’s decision dismissing Warfaa’s ATS claims and allowing his TVPA claims.
Judge Gregory wrote a separate concurring/dissenting opinion in which he dissented with respect to the ATS claims. He noted that the Kiobel case and other subsequent cases involved corporate defendants while the instant claim involved an individual defendant who resided in the United States. Further, Judge Gregory noted that Ali specifically sought residence in the United States, and had, at various points, received military training in the United States. On this basis, Judge Gregory felt that there was enough connection with the United States to create jurisdiction under the ATS. Finally, Judge Gregory noted that it was troubling that, under the majority’s holding, a U.S. resident could escape ATS liability for acts committed abroad that would certainly have been judicially pursued if they had been committed in the United States.
Katherine H. Flynn